# C_2022011EN.01000401.xml

| 10.1.2022 | EN | Official Journal of the European Union | C 11/4 |
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10.1.2022

EN

Official Journal of the European Union

C 11/4

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Judgment of the Court (Fifth Chamber) of 11 November 2021 (request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany) — Energieversorgungscenter Dresden-Wilschdorf GmbH & Co. KG v Bundesrepublik Deutschland

(Case C-938/19) (1)

(Reference for a preliminary ruling - Environment - Directive 2003/87/EC - Greenhouse gas emission allowance trading scheme - Article 2(1) - Scope - Article 3(e) - Concept of ‘installation’ - Effect on emissions and pollution - Ancillary units not generating as such greenhouse gas emissions - Article 10a - Transitional rules for free allocation of allowances - Data Collection Template - Corrected eligibility ratio - Method of calculation - Decision 2011/278/EU - Third subparagraph of Article 6(1) - Export of cooling to an entity that belongs to a sector exposed to a significant risk of carbon leakage)

(2022/C 11/05)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Energieversorgungscenter Dresden-Wilschdorf GmbH & Co. KG

Defendant: Bundesrepublik Deutschland

Operative part of the judgment

| 1. | Article 2(1) and Article 3(e) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, must be interpreted as not precluding national legislation which permits the inclusion, within the boundaries of an installation subject to the greenhouse gas emission allowance trading scheme at EU level, of ancillary units which do not emit greenhouse gases, provided that they meet the criteria set out in Article 3(e) of that directive, as amended, and, in particular, that they could have an effect on emissions and pollution relating to the greenhouse gases listed in Annex II to that directive, as amended. |
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1.

Article 2(1) and Article 3(e) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, must be interpreted as not precluding national legislation which permits the inclusion, within the boundaries of an installation subject to the greenhouse gas emission allowance trading scheme at EU level, of ancillary units which do not emit greenhouse gases, provided that they meet the criteria set out in Article 3(e) of that directive, as amended, and, in particular, that they could have an effect on emissions and pollution relating to the greenhouse gases listed in Annex II to that directive, as amended.

| 2. | The corrected eligibility ratio referred to in the Data Collection Template drawn up by the European Commission pursuant to Article 7(5) of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council constitutes, even where the measurable heat imported from an installation not subject to the greenhouse gas emission allowance trading scheme at EU level can be attributed to a particular heat flow, a single ratio that must, for the purpose, in particular, of calculating the number of emission allowances allocated free of charge to a heat benchmark sub-installation, be calculated and applied on the basis of a comprehensive approach to the heat flows for that sub-installation. |
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2.

The corrected eligibility ratio referred to in the Data Collection Template drawn up by the European Commission pursuant to Article 7(5) of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council constitutes, even where the measurable heat imported from an installation not subject to the greenhouse gas emission allowance trading scheme at EU level can be attributed to a particular heat flow, a single ratio that must, for the purpose, in particular, of calculating the number of emission allowances allocated free of charge to a heat benchmark sub-installation, be calculated and applied on the basis of a comprehensive approach to the heat flows for that sub-installation.

| 3. | The third subparagraph of Article 6(1) of Decision 2011/278 must be interpreted as meaning that a process of a heat benchmark sub-installation does not relate to a sector or subsector that is deemed to be exposed to a significant risk of carbon leakage where that process concerns heat consumed in order to produce cooling that is exported and consumed within an entity which is not subject to the greenhouse gas emission allowance trading scheme at EU level and which belongs to a sector or subsector that is deemed to be exposed to a significant risk of carbon leakage, since it is not that entity that is consuming the heat. |
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3.

The third subparagraph of Article 6(1) of Decision 2011/278 must be interpreted as meaning that a process of a heat benchmark sub-installation does not relate to a sector or subsector that is deemed to be exposed to a significant risk of carbon leakage where that process concerns heat consumed in order to produce cooling that is exported and consumed within an entity which is not subject to the greenhouse gas emission allowance trading scheme at EU level and which belongs to a sector or subsector that is deemed to be exposed to a significant risk of carbon leakage, since it is not that entity that is consuming the heat.

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(1)  OJ C 103, 30.3.2020.

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